"Ideology in" or "Cultural Cognition of" Judging: What Difference Does It Make?, 92 Marquette Law Review 413 (2009)
I will offer a critique of the increasingly popular claim that judging is
"ideological" in nature. That claim rests on a growing body of empirical
literature that correlates federal judges' decisions with some measure of
their ideology, typically the political party of the president who appointed
them. I'm going to argue that proponents of this position,
which I'll call the "ideology thesis," haven't adequately specified the
mechanism by which they understand values to be influencing judges.
These proponents have failed, in particular, to distinguish between values
as a self-conscious motive for decisionmaking and values as a subconscious
influence on cognition. Once that distinction is made, it becomes
clear that the evidence cited to support the ideology thesis fits
just as well with another account, which I'll call the "cultural cognition
thesis." Of course, I'll also explain what the difference between ideology
and cultural cognition is, and why it makes a difference, practically,
whether it's ideology or cultural cognition that's affecting judges.
Date of Authorship for this Version
Kahan, Dan, ""Ideology in" or "Cultural Cognition of" Judging: What Difference Does It Make?" (2009). Faculty Scholarship Series. 4689.